Sunday, February 08, 2009

Legal intervention to avail right to education and right to health - A report on Mr.Ashok Aggarwal's lecture

By Guest Blogger: Sandeep Vishnu

[Student, III Year, Campus Law Centre, Delhi University]

As part of its ongoing series of guest lectures, the Seminar and Discussion Committee of Campus Law Centre, Delhi University invited advocate Mr. Ashok Aggarwal from Social Jurist on February 5. The subject of his talk was “Legal intervention to avail right to health and right to education.”

Mr. Aggarwal has been practising at the bar since 1982 and has been instrumental in filing numerous PILs on rights of citizens against hospitals and schools, both government and private-run.

The first part of the talk was devoted to the present status of the right to health available to the poor in India. Mr. Aggarwal talked of the effort it takes to make your voice heard when it comes to assertion of your basic rights. Giving examples of actual situations faced by poor patients who could not afford to spend any money on their medical treatment, he expressed dissatisfaction at the state of affairs in government hospitals. He stated that nothing is mandated by our law as such when it comes to free treatment of the poor and needy in government and private hospitals. He had filed a writ petition in 2002 in the Delhi High Court in this regard.

Mr. Aggarwal pointed out that the law in India does not mandate anything like basic health care to every citizen, but was of the opinion that health and education must be made free at all levels as is the case in some countries such as Cuba. It would be a good futuristic investment to do that, especially when the current situation reeks of arbitrariness in policy making and failure in deliverance of promised constitutional goal of social justice.

When the writ petition was filed in 2002, the data depicted a large number of hospitals run by numerous societies which were operating on subsidized government allotted land. But as a matter of social responsibility towards the poor, neither the hospital authorities nor those in the health department of the government were contributing anything. The writ petition started to yield some positive results when the Court ordered private hospitals, built on land allotted by government authorities at subsidized rates, to provide free beds and free OPD treatment for a fixed percentage of patients.

Now it is possible to see the effect in private hospitals, some of whom have already fixed the number of free beds for economically weaker sections (EWS) and also give free OPD treatment as per guidelines, while more are following suit. He stated that some prominent hospitals like Gangaram, Fortis etc. have contributed a lot of money towards treating the needy. Word of mouth has been the best possible propaganda here. But the condition of government hospitals still leaves a lot to be desired.

Mr. Aggarwal also briefed the audience regarding the sorry state of affairs in some of these hospitals where stray animals breed on beds or medicines are rarely available and stated that to overcome such situations, judicial orders and the media have sometimes temporarily buzzed the sleeping government machinery. Overall picture seems to show that while private health care players have realized that it is necessary to take care of the poor and the needy as a social goal, the government is yet to come to terms with the idea of being the policy maker in this regard and taking a big leap by legislating in this direction so as to motivate more private investment and more contribution in the vindication of this primary social goal.

The second issue regarding the Right to education was essentially taken up on constitutional grounds of directive principles of state policy like Articles 38 , 39 & 45 which aspire for a welfare state and have been given the same weightage as fundamental rights , although the former remain non justiciable. Fundamental Rights in Article 14, 21 & Article 21-A were highlighted in due course along with Fundamental duties in Article 51-A.

Mr. Aggarwal pointed out that in 1993 when the Unnikrishnan judgement was delivered by the Apex Court, it was clear that Article 45 mandates early childhood care and education for all children below 6 years of age. By 86th Amendment in 2002, Article 21-A was inserted into the Constitution mandating the state to provide free & compulsory education to all children between 6 to 14 years of age. But none of the above articles have seen the light of enforcement yet. In such a grim situation Mr. Aggarwal has himself filed over 125 cases including PILs and writs in the High Court as well as Supreme Court in this regard.

According to Mr. Aggarwal, the insertion of article 21-A requires that no child should be out of school and that there is also a ban on all forms of child labour in the age group 6-14 years. He was of the view that our central legislations in this regard are not yet in tandem with the constitutional right to education. In this regard in one of the cases filed in the Supreme Court has been to declare child labour as unconstitutional and to ensure that all future legislations are in tune with our social welfare goals and aspirations.

Another highlight of the talk was the prevalent discrimination in allotment of funds by the government to Kendriya Vidyalayas and other government or Municipal schools. Mr.Aggarwal was of the opinion that all government schools should be treated at par with each other, parallel schooling systems should be done away with and the current pending draft of Right to education Bill should be fast tracked to regulate schooling in the country. The Apex Court has been requested that pending the legislation, guidelines in relation to minimum and basic facilities be framed.

In 1997, when the 5th Pay Commission recommendations were introduced, almost all private schools hiked their fees manifold. When a PIL was filed in the High Court of Delhi, it was felt by the Court that although free education mandate cannot strictly apply to the private schools they must not be allowed to commercialize on such a big scale and must be held accountable by charging just and reasonable fees from children. While the High Court ordered a set of guidelines to the private schools, the appeal of the latter was dismissed by Supreme Court.

Another PIL discussed by him was with regard to lack of proper buildings and other basic facilities in government and MCD schools, which as a campaign, was also supported by the print media. As per the directions issued on the basis of evidence produced in the court, every school is now required to have fixed boundary walls, toilet and drinking water facilities in working condition. Mr. Aggarwal remarked that today we have come a long way, yet the only thing that is lacking in such schools is quality education.

Mr. Aggarwal also highlighted the plight of the children of the jhuggiwalas, the ragpickers etc. in Delhi who want to have basic education but are denied this right and are most often discriminated against for no fault or reason. He has taken up various such matters in the High Court and it has been seen that after initial troubles, justice certainly triumphs. As was the case in health care, the government allots land at subsidised rates to various societies for setting up schools and approximately 265 such schools were listed before the High Court who were doing nothing for the sake of imparting education to the EWS, in spite of the Court's directions in this regard in 2004.

Another issue was the interviewing process of the 3-year olds by the schools in the name of assessing their values and talent as per the school's reputation. The High Court has dealt sternly with the situation and ordered that no such school on government allotted land shall deny admission to the EWS children and that no such interviews shall be permitted any more. Even the Government schools found violating such admission orders have been warned against this practice.

The message conveyed to the audience was that it is not personal grudge but honesty of purpose that is required for a sincere effort towards making of a better society where every person is healthy and educated. It is advisable to form social pressure groups for such purposes and keep litigation as the last alternative. Mr. Aggarwal felt that his efforts showed visible impact, as is evident by the 25 per cent quota for EWS in Delhi private schools or as is visible in the list of over 35 private hospitals with free beds and free OPD facilities.
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